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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Magistrates of Cumnock and Holmhead v. Murdoch [1910] ScotLR 460_1 (17 March 1910)
URL: http://www.bailii.org/scot/cases/ScotCS/1910/47SLR0460_1.html
Cite as: [1910] ScotLR 460_1, [1910] SLR 460_1
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SCOTTISH_SLR_Court_of_Session
Page: 460↓
Court of Session Inner House First Division.
[Sheriff Court at Ayr.
v.
Facts:
The Burgh Police (Scotland) Act 1892, sec. 339, as amended by the Burgh Police (Scotland) Act 1903, sec. 104 (2) ( s), provides for a right of appeal to the Court of Session, “in terms and subject to the provisions of” the Summary Prosecutions Appeals (Scotland) Act 1875. The last-mentioned Act is repealed by the Summary Jurisdiction (Scotland) Act 1908, which enacts, sec. 4, that “where any statute provides for … appeal under the Summary Prosecutions Appeals (Scotland) Act 1875, such … appeal shall be taken under this Act” ( i.e., to the High Court of Justiciary).
Held that an appeal under sec. 339 of the Burgh Police (Scotland) Act 1892, as amended by sec. 104 (2) ( s) of the Burgh Police (Scotland) Act 1903, which had been taken to the Court of Session in terms of the Summary Prosecutions Appeals (Scotland) Act 1875, had been competently presented to that Court—the repeal of the last-mentioned Act by the Summary Jurisdiction (Scotland) Act 1908 not affecting the independent right of appeal to the Court of Session given by the Burgh Police (Scotland) Acts of 1892 and 1903.
Page: 461↓
The Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), sec. 339, as amended by the Burgh Police (Scotland) Act 1903 (3 Edw. VII, cap. 33), sec. 104 (2) ( s), enacts—“Any person liable to pay or to contribute towards the expense of any work ordered or required by the Commissioners under this Act, and any person whose property may be affected, or who thinks himself aggrieved, by any order or resolution or deliverance or act of the Commissioners made or done under any of the provisions herein contained, may, unless otherwise in this Act specially provided, appeal either to the Sheriff or to the Court of Session by lodging a note of appeal …: Provided always that the judgment of the Sheriff-Substitute shall be subject to review by the Sheriff, and, subject to this appeal to the Sheriff, the judgment of the Sheriff-Substitute shall be final and not subject to review by any other court except as after mentioned: Provided that any party dissatisfied with the judgment of the Sheriff, as erroneous in point of law, may appeal there against to the Court of Session, in terms and subject to the provisions of the Summary Prosecutions Appeals (Scotland) Act 1875.…”
The Summary Jurisdiction (Scotland) Act 1908 (8 Edw. VII, cap. 65) by section 3 and Schedule A repeals the Summary Prosecutions Appeals (Scotland) Act 1875 (38 and 39 Vict. cap. 62), and enacts, sec. 4—“… Where any statute provides for proceedings being taken under the Summary Procedure Act 1864, the Summary Jurisdiction (Scotland) Acts 1864 and 1881, or under any general or local Police Act, or under any public, general, or local Act incorporating any section of any Act hereby repealed, or for appeal under the Summary Prosecutions Appeals (Scotland) Act 1875, such proceedings or appeal shall be taken under this Act… …”
On 28th December 1909 the Provost, Magistrates, and Councillors of the Burgh of Cumnock and Holmhead appealed by way of Case stated under the Summary Prosecutions Appeals (Scotland) Act 1875 (38 and 39 Vict. cap. 62), sec. 3 (5), against a decision of the Sheriff of Ayr ( Lorimer), sustaining an appeal at the instance of Mrs Margaret Flinn or Murdoch, Ayr Road, Cumnock, against an order of the Magistrates requiring her, in virtue of section 142 of the Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), as amended by section 17 (1) of the Burgh Police (Scotland) Act 1903 (3 Edw. VII, cap. 33), to have the footpath in front of her property in Ayr Road put in a sufficient state of repair by forming a new footpath provided with granite kerb and water channel.
The facts as stated by Lord Johnston in his opinion ( infra) were as follows:—“The order of the Magistrates was dated 21st April 1909. Mrs Murdoch appealed to the Sheriff-Substitute on 11th May. On 17th June the Sheriff-Substitute sustained the appeal in part and dismissed it in part. On 26th June Mrs Murdoch appealed to the Sheriff, who on 19th October recalled the judgment of the Sheriff-Substitute and sustained Mrs Murdoch's appeal in toto. The Magistrates being dissatisfied with the judgment of the Sheriff, obtained from him a stated case dated 14th December 1909, and on that day gave notice of appeal to the First Division of the Court of Session by writing to Mrs Murdoch and forwarding to her a copy of the stated case. This they did expressly ‘in terms of section 3, subsection (5), of the Summary Prosecutions Appeals (Scotland) Act 1875,’ and the terms of that section they have admittedly complied with.”
The respondent objected to the competency of the appeal, and argued—This appeal ought to have been taken to the Court of Justiciary and not to the Court of Session — Summary Jurisdiction (Scotland) Act 1908 (8 Edw. VII, cap. 65), secs. 3, 4, 60, 61, and Schedule A.
Argued for appellants—The appellants had a right of appeal to the Court of Session under the Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), sec. 339, as amended by the Burgh Police (Scotland) Act 1903 (3 Edw. VII, c. 33), sec. 104, sub-sec. (2) ( s). This right of appeal had not been taken away by the repeal of the Summary Prosecutions Appeals (Scotland) Act 1875 (38 and 39 Vict. c. 62), for that Act only regulated the mode of procedure in such appeals. Reference was also made to the Interpretation Act 1889 (52 and 53 Vict. c. 63), sec. 38, sub-sec. (2)(c.).
At advising—
By section 143 of the first-mentioned Act any person whose property may be affected by such an order may appeal to the Sheriff in manner after provided. The limitation of appeal under this section to the Sheriff is unnecessary, and I think ineffectual, for section 339, which provides for appeal in general against orders of the magistrates as commissioners under the Act, and which covers the case of an order under section 142, is self contained, and gives a right of appeal, without the necessity of relying upon section 143, to the Sheriff or to the Court of Session in manner defined. But it adds a proviso not very skilfully framed, but which imports that where the appeal from the magistrates is taken to the Sheriff, and is heard by the Sheriff-Substitute, his judgment may be reviewed by the Sheriff, but subject to this appeal shall be final, and not subject to review by any other court. So far, then, appeal against the order of
Page: 462↓
When the Burgh Police (Scotland) Act 1903 was passed, which was an Act intended to amend and supplement the Act of 1892, and is to be read and construed along with it as one Act, it was apparently thought that the finality given by the section (339), above referred to, to the Sheriff's judgment was unsatisfactory, and accordingly the following proviso was, by section 104, subsection (2) ( s), added to the 339th section of the principal Act of 1892, “except as after mentioned: Provided that any party dissatisfied with the judgment of the Sheriff, as erroneous in point of law, may appeal there against to the Court of Session, in terms and subject to the provisions of the Summary Prosecutions Appeals (Scotland) Act 1875,” provided that the limit of time for such appeal should be six days instead of three days, as provided by the last-recited Act.
What has occurred in the present case is this—… [ His Lordship narrated the facts ut supra] …
The competency of the appeal is disputed, it being maintained that it ought to have been taken to the High Court of Justiciary under, and that in any view there should have been adopted the mode of appeal provided by, the Summary Jurisdiction Act 1908.
When the Act of 1875 is examined it is found to be limited (section 3) to appeals in matter of law on case stated to “a superior court of law” in any proceedings which may be brought under the Summary Procedure Act 1864, and in any other proceedings of a summary nature for the prosecution of offences or recovery of penalties; and further, a rule is provided (section 7) whereby it might be determined whether the appeal was to be taken to the superior criminal or supreme civil court. But in the case of an order under the Burgh Police Act 1892, section 142, appeal was not given by virtue of the Act of 1875 alone, for the order was not per se a proceeding falling under that Act, nor was it given by the incorporation of that Act or any part of it. The right of appeal depended not upon that Act, but solely upon the Burgh Police Acts 1892, section 339, and 1903, section 104 (2) ( s). The Act of 1875 was only brought in to supply the machinery or form in which the appeal was to be taken. And it was not left to the Act of 1875 to determine whether the appeal was to be to the Court of Session or to the Court of Justiciary, but it was expressly declared to be to the Court of Session. And this was only natural, for the proceeding was not under the Summary Procedure Act 1864, and was neither for the trial of an offence nor for the recovery of a penalty, and was per se purely a civil matter; and an alternative appeal, passing by the Sheriff, coexisted along with it to the Court of Session on the whole merits, though open only to the party aggrieved by the magistrates' order, and not to the magistrates themselves.
But it is now maintained that the effect of the Summary Jurisdiction (Scotland) Act 1908 is, while leaving an appeal direct on the merits from the burgh magistrates to the Court of Session under the Burgh Police Act 1892, section 339, as originally framed, to transfer and restrict the appeal on case stated under that section as amended by the Burgh Police Act 1903, section (104) (2) ( s), to the Court of Justiciary.
I cannot conceive for a moment that this was intended.
The Summary Jurisdiction Act 1908 was purely a criminal procedure statute. It was an attempt to provide for summary criminal procedure a code, similar to that provided for ordinary criminal procedure by the Criminal Procedure Act 1887, and at the same time to consolidate all existing statutory enactments on the subject, repealing them as substantive enactments. The Act is a criminal procedure Act and nothing else, and the causes to which it applies are criminal causes. But in its desire to codify everything criminal and summary, it provides, section 60 et seq., for appeal on case stated to the High Court of Justiciary in all proceedings brought under the Act, i.e., all summary criminal proceedings, a set of regulations to supersede those of the Summary Prosecutions Appeals Act 1875, and repeals that Act in toto. It was then, I suppose, observed that the Act of 1875 was not confined to criminal cases, but gave a right of appeal in a number of cases of an analogous description, which had hitherto been treated as civil matters, and confined to the civil courts. From their near kinship to criminal proceedings, it was apparently thought better to abolish the distinction between the two jurisdictions provided by the Summary Prosecutions Appeals Act 1875, section 7, and so avoid the dubiety which still occasionally existed as to whether these cases where appropriate for appeal to the civil or the criminal court, and accordingly no limitation was placed on the repeal of the Summary Prosecutions Appeals Act 1875; but to counteract the too sweeping effect of its repeal two or three lines were added to the fourth section of the Summary Jurisdiction Act 1908 to the effect that “When any statute provides for proceedings being taken under the Summary Procedure Act 1864, the Summary Jurisdiction (Scotland) Acts 1864 and 1881, or under any general or local Police Act, or under any public, general, or local Act incorporating any section of any Act hereby repealed, or for appeal under the Summary Prosecutions Appeals (Scotland) Act 1875, such proceedings or appeals shall be taken under this Act.”
Under this Act appeal is to the High Court of Justiciary only, as already mentioned, and a code of procedure for appeals is provided by section 60 et seq.
How, then, is a case like the present,
Page: 463↓
In the first place, it is clear, I think, that no transfer of the appeal from the Court of Session to the High Court of Justiciary is effected, for the right of appeal does not depend either upon the Summary Prosecutions Appeals Act 1875 or upon the Summary Jurisdiction Act 1908. And as the appeal is not taken under the latter Act, I cannot see that its appeal procedure, which on examination is entirely inappropriate to appeal to the Court of Session, is to be substituted in the Burgh Police Act 1892 as amended by that of 1903 for that of the Summary Prosecutions Appeals Act 1875. Though that Act may be itself repealed, its repeal does not prevent the appeal procedure described in it being still used in appeals under the Burgh. Police Acts.
I think, therefore, that this appeal is competently brought to the Court of Session, and that the proper method of preparing and presenting the appeal has been followed.
The Court repelled the respondent's objection to the competency of the appeal, and of new appointed the cause to be put to the Summar Roll.
Counsel for Appellants— Spens. Agent— J. A. Kessen, S.S.C.
Counsel for Respondent— Cooper, K.C.— Forbes. Agent— John Forgan, S.S.C.